Congress Should Pass the Keeping All Students Safe Act

Tens of thousands of students with special needs attend schools around the country every day. Laws like the Individuals with Disabilities Education Act (IDEA), Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act aim to make these students’ public school experiences free and appropriate.

However, students with intellectual and developmental disabilities often still face unequal treatment at school. Last month, a U.S. Department of Education report was released that showed that students that qualify for special education services are subject to physical restraint and seclusion at rates far higher than the general student population. The report shows, “Students with disabilities (under the IDEA and Section 504 statutes) represent 12% of students in the sample, but nearly 70% of the students who are physically restrained by adults in their schools.”

In addition, a 2009 Government Accountability Office (GAO) study found unnecessary seclusion and restraint has caused significant psychological and physical injuries to thousands of students across the country. The study also found that over 200 students have died from unnecessary seclusion and restraints over a five-year period.

The Need for a Federal Law

The disparity in treatment between the general student population and students receiving special education services prompted Senator Tom Harkin and Representative George Miller to file legislation seeking to ban unnecessary restraint and seclusion of students. Rep. Miller’s HR 1381 is currently in the House Subcommittee on Early Childhood, Elementary, and Secondary Education. Sen. Harkin’s S.2010 is currently sitting in the Senate Committee on Health, Education, Labor and Pensions.

Both bills would establish a national standard that physical restraint is only acceptable in scenarios where there is an immediate threat of physical harm.

Prohibit the use of physical restraints except for emergency situations

Prohibit the use of physical restraints that inhibit a student’s primary means of communication

Prohibit the use of seclusions and/or restraints in a student’s Individual Education Plan (IEP) or any other behavioral plan

Call for states to promote preventative programming to reduce the use of restraints

Call for states to collect data on the occurrence of seclusions and restraints

Call for schools to conduct a debriefing with parents and staff after a restraint is used and plan for positive behavioral interventions that will prevent the use of restraints with the student in the future

Establish a state grant program to enhance the State’s ability to promote, within its LEAs, preventative programming and training for school personnel

The problem, however, is that many teachers and administrators are not trained in proper methods, and often improperly restrain students. Improper implementation of restraints can psychologically damage, physically injure, or kill a student. The Council of Parent Attorneys and Advocates (COPAA) has responded to each of ASAA’s findings.

Current Law in Texas

Texas is one of only 14 states that limits the use of restraints to physical safety emergencies.

Texas Education Code Section 37.0021 states: “A student with a disability who receives special education services…may not be confined in a locked box, locked closet, or other specially designed locked space as either a discipline management practice or a behavior management technique.”

The Code defines “seclusion” as confining a student in a locked box, closet or room that is designed solely to exclude a person AND is less than 50 square feet of space. Therefore, locking a student in a space larger than 50 square feet cannot qualify as seclusion. The Code prohibits school district employees from placing a student in “seclusion.” There are exceptions for situations when a student has a weapon or when seclusion is court-ordered.

The Code delineates between “seclusion” and “time-out.” A time-out is defined as, “a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting (A) that is not locked; and (B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.”

The Texas Education Agency (TEA) has adopted procedures for schools’ use of time-out and restraint in Title 19 of the Texas Administrative Code Section 89.1053. Teachers can restrain a student in an emergency situation if:

(1) Restraint shall be limited to the use of such reasonable force as is necessary to address the emergency.

(2) Restraint shall be discontinued at the point at which the emergency no longer exists.

(3) Restraint shall be implemented in such a way as to protect the health and safety of the student and others.

The procedures also require regular training for some members of the school. Moreover, when a teacher restrains a student with special needs, an administrator and the parent must be notified. Detailed documentation must also be filed in the student’s special education file (a sample form is provided by TEA).

The regulations also include information on the proper use of time-out. Among other requirements, the time-out must be administered by a trained professional and cannot be physically forced.

What’s Next?

Texas is certainly ahead of the national curve when it comes protecting students with special needs from unnecessary seclusion and restraint. However, a national standard is necessary to push the remaining 36 states lacking a statute in the right direction.

Want to see action? Contact your legislators and ask them to sign on to the legislation currently before Congress. COPAA shows how to find and contact your legislator, as well as a sample message you can send your Representative and/or Senator by email.

About Alex Hunt

Alex Hunt is a former Yale & Irene Rosenberg Graduate Fellow at the Center for Children, Law & Policy. Alex graduated from the University of Texas in 2008 with a Bachelor of Arts in government. Before entering law school, he taught middle school math at YES Prep Southwest in Houston with Teach For America. In 2010, he received New Leaders' EPIC Spotlight Teacher Award, a national award for teachers with outstanding student growth.
Alex graduated cum laude from the University of Houston Law Center in May 2013. During law school, Alex was Casenotes & Comments Editor for the Houston Journal of International Law, interned for both state and federal judges, and served as Vice President of the Health Law Organization (HLO). In addition, Alex has received the Irving J. Weiner Memorial Scholarship Award (for a year of outstanding work in the UH Law Center Legal Clinic), the Napoleon Beazley Defender Award (for outstanding work on behalf of children), the Ann Dinsmore Forman Memorial Child Advocacy Award, the Mont P. Hoyt Memorial Writing Award for an Outstanding Comment on a Topic in International Law, and he was a finalist for Texas Access to Justice's Law Student Pro Bono Award.
Alex is currently in private family law practice with the Hunt Law Firm, P.L.L.C. in Katy, Texas.

Contact Us

Center for Children, Law & Policy (CCLP)
Southwest Juvenile Defender Center (SWJDC)
Director Ellen Marrus, J.D., LL.M.,
George Butler Research Professor of Law
University of Houston Law CenterEMarrus@uh.edu